Religious Freedom Restoration Act:
What You Need to Know

A furor has erupted over an Indiana law that opponents say
could give businesses the right to refuse service to gay
people. And the controversy is reaching its height just as
the Final Four comes to town.

Gov. Mike Pence, a possible Republican presidential
candidate, says that the law is meant to protect free
exercise of religion. The Republican leaders of the Indiana
Legislature said Monday that the law does not permit
discrimination of any kind, and they pledged to work quickly
on language to clarify it.

On the other side are public figures as varied as Hillary
Rodham Clinton, Miley Cyrus and the chief executive of
Apple. The backlash grew on Monday when the state of
Connecticut announced plans to suspend government travel to
Indiana.

Here's what you need to know:

Basics

The law is known as Senate Bill 101. Pence signed it into
law last week. It takes effect July 1. You can read the full
bill here.

The text says that the state cannot "substantially burden
a person's exercise of religion" unless it is furthering a
"compelling government interest" and acting in the least
restrictive way possible.

History

Nineteen states have so-called religious freedom laws.
They are modeled after a federal law, the Religious Freedom
Restoration Act, signed by President Bill Clinton in
1993.

It passed the House without objection and cleared the
Senate by a vote of 97-3. Clinton said at the time that the
law subjects the federal government to "a very high level of
proof before it interferes with someone's free exercise of
religion."

Some legal experts have said that Indiana's law differs
from the federal law, and most other similar state laws, in
ways that could allow businesses a wider berth to
discriminate.

Context

Gay marriage has been legal in Indiana since last
October, when the Supreme Court declined to take up a
challenge to a federal appeals court ruling. Indiana does
not have a state law specifically protecting gay people from
discrimination.

As The Washington Post pointed out over the weekend, the
other 19 states that passed so-called religious freedom laws
did so before gay marriage became legal in most of the
country.

Last February, then-Gov. Jan Brewer of Arizona vetoed a
similar law. "I sincerely believe that Senate Bill 1062 has
the potential to create more problems than it purports to
solve," she said at the time.

The backlash against the proposed law in Arizona was
severe, and mirrors what is happening in Indiana. The NFL
was even said to be considering moving the Super Bowl out of
the state.

Defense

Social conservatives say that the law would stop the
government from compelling people to do things they object
to on religious grounds, like catering or providing flowers
for a gay wedding.

Daniel O. Conkle, an Indiana University law professor who
supports both the law and gay marriage, offered a defense in
an essay for The Indianapolis Star.

Applying this test, a unanimous U.S. Supreme Court
recently ruled that a Muslim prisoner was free to practice
his faith by wearing a half-inch beard that posed no risk to
prison security. Likewise, in a 2012 decision, a court ruled
that the Pennsylvania RFRA protected the outreach ministry
of a group of Philadelphia churches, ruling that the city
could not bar them from feeding homeless individuals in the
city parks.

Indiana Right to Life and the anti-abortion group Susan
B. Anthony List have also come out in support of the
law.

Monday, Sen. Ted Cruz of Texas, a Republican presidential
candidate, said in a Senate floor speech that Pence was
"giving voice to millions of courageous conservatives across
this country who are deeply concerned about the ongoing
attacks upon our personal liberties."

Pence told The Indianapolis Star on Saturday that he was
in talks with legislators and that a clarification could
come this week. On Sunday, he gave a lengthy interview to
ABC's "This Week" and defended the bill.

He said it was a "red herring" to suggest that the law is
a license to discriminate. "This isn't about disputes
between individuals; it's about government overreach," he
said. "And I'm proud that Indiana stepped forward."

But he sidestepped direct questions on whether the law
sanctions discrimination. George Stephanopoulos, the anchor,
then asked him: "Yes or no, should it be legal to
discriminate against gays and lesbians?"

Pence answered:

George, you're  you're following the mantra of the
last week online, and you're trying to make this issue about
something else. What I am for is protecting, with the
highest standards in our courts, the religious liberty of
Hoosiers. I signed the bill. We're going to continue to
explain it to people that don't understand it. And in 
and if possible, we will find a way to amplify what this
bill really is in a legislative process. But I stand by this
law.

On Monday, Pence penned an op-ed in the Wall Street
Journal in which he blamed Obamacare for creating the need
for the law.

Backlash

Mark Emmert, president of the NCAA, expressed concern
last week about "how this legislation could affect our
student-athletes and employees." And in an interview on
Monday, Emmert said he was "deeply concerned" about the law.
He hinted that the NCAA might have second thoughts about
future events in Indiana.

College basketball's Final Four begins in Indianapolis on
Saturday night. The tourism organization Visit Indianapolis
told Forbes that the economic impact is more than $70
million.

Elsewhere, the outcry has been widespread. Washington
Gov. Jay Inslee on Monday banned official state travel to
Indiana, saying the law "appears to legalize private
discrimination."

"I find Indiana's new law disturbing, particularly at a
time when more and more states and people in America are
embracing civil rights for everyone," Inslee wrote in an
executive order.

Tim Cook, who as CEO of Apple is the most prominent
openly gay corporate official in America, published an Op-Ed
in The Washington Post describing laws like Indiana's as
"very dangerous."

"These bills rationalize injustice by pretending to
defend something many of us hold dear," he wrote. "They go
against the very principles our nation was founded on, and
they have the potential to undo decades of progress toward
greater equality."

Angie's List said it was canceling a proposed expansion
in Indianapolis. Miley Cyrus, in an Instagram post, used an
expletive to refer to the governor and said: "The only place
that has more idiots that Instagram is in politics."

And on Monday, the country's largest union of public
employees, known as AFSCME, announced that it would move an
October conference out of Indianapolis because of what it
called an "un-American law."

A fix?

Brian Bosma, the speaker of the state House, said that
the law does not allow discrimination against "any segment
of the Hoosier community." He said that lawmakers would be
willing to "put an exclamation point on that," and to work
quickly.

Both he and the Republican leader of the state Senate
said that Pence could have given clearer answers on "This
Week."

What Are the Limits of Religious
Liberty?

I cant. Its against my religion.
Americans tend to handle religious objections with care,
personally and politically. When a guest says, for example,
that he cant eat the food being served because
its not kosher or halal, the host usually hastens to
find an alternative. And when people resist following a law
on the basis of faith, the government and the courts may try
to accommodate them. Its an American legacy that dates
back to before the founding, when some of the original
colonies were set up as havens for religious dissenters.
Under the banner of belief, Quakers and Mennonites in the
18th century won the right not to join state militias. The
first conscientious objectors were religious objectors, and
from there, the category expanded to include moral opponents
of war. The same pattern holds for home-schoolers. It was an
Amish father, not a hippie mother, who first got the Supreme
Courts permission to take his children out of school
in 1972, based on his religious commitment to
life aloof from the world, as the
justices respectfully put it.

Making exceptions to the law for people of faith has
become part of the American definition of religious
tolerance, part of our ethos of live and let live. It has
also helped keep the peace in a polyglot nation. In France,
its illegal for a Muslim woman to wear a head scarf at
a public school. In the United States, its illegal for
a clothing store to refuse to hire a Muslim woman because
she wore a head scarf to her job interview. When the Supreme
Court issued that ruling last month, eight of nine justices
agreed that Samantha Elauf, who lost out on a job at
Abercrombie Kids because of a companywide policy banning
head coverings, was asking for favored
treatment  to which she was entitled by
federal employment law. This is really
easy, Justice Antonin Scalia said, announcing
the decision from the bench.

And yet weve arrived at an unfortunate impasse over
the meaning of religious liberty. Unlike in earlier eras,
when religious objections let the faithful separate
themselves from institutions they felt they could not
support, many conservatives now deploy the phrase as a way
of excluding other people. Take the furious outcry that
erupted in response to the Supreme Courts 5-to-4
decision to make same-sex marriage legal in every state.
Conservative pushback began with the dissenting justices:
Clarence Thomas warned of potentially ruinous
consequences for religious liberty. Some
Republican officeholders rushed to throw up whatever shield
they could for people of faith. Two states have declared
that county clerks may refrain from issuing marriage
licenses if they dont want to give them to gay couples
as a matter of conscience. Bakers, photographers and
florists  and adoption agencies and landlords 
who cite their religion when refusing to serve gay couples
won assurances like this one from Greg Abbott, governor of
Texas: No Texan is required by the Supreme
Courts decision to act contrary to his or her
religious beliefs regarding marriage.

The same-sex-marriage resisters hope to capitalize on a
recent expansion of religious liberties, in another big case
about modern-day sexual norms. In a divisive 5-to-4 ruling
last year, the Supreme Court extended to a company, and not
just to individuals, the right to mount a religious
objection to a law. The craft-store chain Hobby Lobby, which
is owned by evangelicals, refused to pay for certain forms
of birth control for its female employees, as the Affordable
Care Act requires. The owners argued that providing health
insurance that covered emergency contraception and IUDs
offended their evangelical beliefs, saying these methods
induce abortions (by taking effect after fertilization).
Hobby Lobby had little scientific support for that
assertion. By contrast, in defending the contraception
mandate, the Obama administration could cite the consensus
medical view that providing a variety of birth-control
methods benefits womens health. Nonetheless, the court
sided with Hobby Lobby and its sense of conscience.

The courts decision led to a burst of feminist
outrage, but Hobby Lobby didnt face a sustained
boycott. And so it was surprising when another push for
religious objection crashed into a wall of public
condemnation earlier this year. Legislators in Indiana and
Arkansas expected a smooth ride for their versions of a bill
called the Religious Freedom Restoration Act. The first law
by that name was passed by Congress in 1993 by huge,
bipartisan margins. R.F.R.A. established a balancing test
that remains in effect: When someone complains that a
federal law substantially burdens his or her free exercise
of religion, the government must show that it has a
compelling interest in applying that law.

The R.F.R.A.s proposed in Indiana and Arkansas were more
expansive: They would have allowed people and corporations
to bring religious-liberty claims against one another, as
well as the government. But that change didnt really
explain why Indiana and Arkansas found themselves on the
wrong side of the culture wars; the context did. The new
religious-liberty bills appeared to be shielding businesses
that didnt want to serve gay couples, who had recently
won the right to marry in Indiana. If a gay
couple came in and wanted us to provide pizzas for their
wedding, we would have to say no, Crystal
OConnor, an owner of Memories Pizza in Walkerton,
Ind., told a local news station. This time, the boycott
materialized, and Memories Pizza temporarily shut its doors
(supporters also raised more than $800,000 on the
owners behalf). When major companies threatened to
pull up stakes in Indiana and Arkansas, the states
retreated, altering their religious-freedom bills.

Following the Supreme Courts marriage ruling,
religious objections to serving gay couples are mounting in
more states. Invoking religious liberty in this way presents
special concerns by prolonging
social conflict, according to a recent article by two law
professors, Reva B. Siegel of Yale and Douglas NeJaime now
of U.C.L.A. School of Law. They point to the aftermath of
Roe v. Wade: After the Supreme Court ruling legalized
abortion throughout the country, Congress and state
legislatures ensured that a doctor, nurse or other health
care professional could refuse to participate in providing
an abortion as a matter of conscience. Over the decades,
these conscience clauses expanded in
some states to include counseling, referral and
pharmaceutical services, allowing people who fill
prescriptions, for example, to exert a form of social
control in the name of their own religious freedom.

The muscle of the conservative Christian movement, Siegel
and NeJaime argue, enhances its power to
demean. Women who have been refused abortion
services report feeling judged and mortified. Gay couples
turned away by wedding vendors say the same. The
phrase religious liberty has become an overused
talisman, the Indiana University law professor
Steve Sanders told me. Most of the invocations
lately have nothing to do with actual infringements of free
exercise. Theyre about political and cultural dissent
from gay rights.

Religious liberty has always had something to with 2
things. History and the Bible for Christians. On segregation
you could pull up history...

All of this is making longtime proponents of religious
liberty nervous. Douglas Laycock, a law professor at the
University of Virginia, has helped write state religious
freedom bills and supported the ones that foundered in
Indiana and Arkansas. But in an article last year, he issued
a warning to evangelical leaders. It is a risky
step to interfere with the most intimate details of other
peoples lives while loudly claiming liberty for
yourself, Laycock wrote. If you
stand in the way of a revolution and lose, there will be
consequences.

Refusing to serve customers has an ugly history. A
half-century ago, the civil rights movement held
lunch-counter sit-ins to protest Jim Crow. No one succeeded
then in claiming a God-given right to refuse to serve black
customers. Throughout the South, businesses open to the
public became open to all. Today, in the name of religious
liberty, there is robust Southern opposition to same-sex
marriage. But supporters say the analogy to the exclusions
of Jim Crow is inapt, because racial segregation was never
central to Christian teaching the way traditional marriage
has been. They also correctly point out that strong national
laws protect against discrimination on the basis of race,
but not against discrimination on the basis of sexual
orientation. In many states, in the South and elsewhere, a
business or a landlord doesnt need a special
faith-based reason for turning away a gay client or tenant.
Theyre simply free to do so.

Given the speed with which public support for same-sex
marriage is growing, gay people may win other rights against
discrimination. But what about private religious schools and
social-service organizations? Hard
questions will arise, Chief Justice John Roberts
predicted in his dissent from the same-sex marriage ruling,
when, for example, a religious college provides
married student housing only to opposite-sex married
couples, or a religious adoption agency declines to place
children with same-sex couples.

In the Senate and the House of Representatives, dozens of
Republicans quickly signed on to a bill that would protect
the tax-exempt status of a religious organization in such a
situation and prevent any government action against a
business that refused to serve a gay couple. On both sides
of this fight, tolerance no longer seems to be the word of
the day. The religious resisters say, It
doesnt matter if you can have the wedding you want,
because you shouldnt be getting married
anyway,? Laycock said over the phone last
week. The gay rights people answer, It
doesnt matter if you violate your conscience, because
youre just talking to your imaginary
friend.? When basic values and rights
collide, usually somebody wins and somebody loses. It
becomes difficult to find mutual compassion, even if that
would be the godly thing to do.

Correction: July 26, 2015

An article on July 12 about religion and American law
misidentified the academic affiliation of Douglas NeJaime,
who was an author of a paper on religion and law. He is a
professor at the School of Law at the University of
California, Los Angeles, not the University of California,
Irvine, where he taught at the time the paper was
written.Source: www.nytimes.com/2015/07/12/magazine/what-are-the-limits-of-religious-liberty.html?_r=0

2015 State Religious Freedom
Restoration Legislation

Seventeen states have introduced legislation this year
regarding the creation of, or alteration to, a state
religious freedom law. Currently, 21 states have Religious
Freedom Restoration Acts (RFRAs).

Oklahoma, South Carolina and Texas currently have a RFRA,
but have introduced legislation this year to amend or
supplement their law. Colorado, Georgia, Hawaii, Maine,
Michigan, Montana, Nevada, North Carolina, South Dakota,
Utah, West Virginia and Wyoming are looking to add a RFRA or
similar law to their state's laws. Arkansas and Indiana have
enacted legislation on this topic in 2015, and Mississippi
passed legislation in 2014.

Below is a list of legislation with final disposition
listed alongside the bill when applicable. Enacted
legislation is in bold.

Arkansas

SB 975; Signed by Governor  4/3/2015

Colorado

HB 1171

Concerns a state freedom of conscience
protection act.

Georgia

HB 29

Relates to state government; provides for the
preservation of religious freedom; provides for a
short title; provides for findings; provides for
definitions; provides for penalties; provides for
the granting of relief; repeals conflicting
laws.

Georgia

HB 218

Relates to state government; provides for the
preservation of religious freedom; provides for the
granting of relief; provides for definitions;
provides for a short title; provides for findings;
provides for an effective date; repeals conflicting
laws.

Georgia

SB 129

Relates to state government; provides for the
preservation of religious freedom; provides for
legislative findings; provides for definitions;
provides for the granting of relief; provides for a
short title; provides for an effective date;
repeals conflicting laws.

Hawaii

HB 1160

Prohibits the State or any county from burdening
any person's right to exercise religion absent that
burden being the least restrictive means of
furthering a compelling governmental interest.

Indiana

HB 1632

Provides that a state or local government action
may not substantially burden a person's right to
the exercise of religion unless it is demonstrated
that applying the burden to the person's exercise
of religion is essential to further a compelling
governmental interest, and the least restrictive
means of furthering the compelling governmental
interest.

Indiana

SB 101; Signed by Governor  3/26/2015

Prohibits a governmental entity from
substantially burdening a person's exercise of
religion unless the governmental entity can
demonstrate that the burden is in furtherance of a
compelling governmental interest and is the least
restrictive means of furthering the compelling
governmental interest; provides a procedure for
remedying a violation; specifies that the religious
freedom law applies to the implementation or
application of a law.

Indiana

SB 50; Signed by Governor  4/2/2015

Indicates that the law related to adjudicating a
claim or defense that a state or local law,
ordinance, or other action substantially burdens
the exercise of religion of a person: (1) does not
authorize a provider to refuse to offer or provide
services, facilities, use of public accommodations,
goods, employment, or housing to any member or
members of the general public; (2) does not
establish a defense to a civil action or criminal
prosecution for refusal by a provider to offer or
provide services, facilities, use of public
accommodations, goods, employment, or housing to
any member or members of the general public; and
(3) does not negate any rights available under the
Constitution of the State of Indiana. Defines the
term provider.

Indiana

SB 568

Provides that a state or local government action
may not substantially burden a person's right to
the exercise of religion unless it is demonstrated
that applying the burden to the person's exercise
of religion is essential to further a compelling
governmental interest, and the least restrictive
means of furthering the compelling governmental
interest.

Montana

HB 615; Failed

Nevada

AB 277

Prohibits state action from substantially
burdening a person's exercise of religion under
certain circumstances.

Nevada

SB 272

Prohibits state action from substantially
burdening a person's exercise of religion under
certain circumstances.

North Carolina

HB 348

Enacts the Religious Freedom Restoration
Act.

North Carolina

SB 550

Enacts the North Carolina religious freedom
restoration act.

Oklahoma

HB 1371

Relates to the Oklahoma Religious Freedom Act;
relates to definitions; adds certain definition;
prohibits state or subdivision from making certain
claim under certain action; provides for
codification; provides an effective date.

South Carolina

SB 127

Relates to the South Carolina Religious Freedom
Act; prohibits restrictions on the free exercise of
speech or religion during the course of any
locality, municipality, county, or other state
instrumentality proceeding in violation of the
first amendment of the United States or Article I,
Section 2 of the Constitution of South
Carolina.

South Dakota

HB 1220; Failed - Adjourned

Provides for the free exercise of religion and
to declare an emergency.

Texas

HJR 55

Proposes a constitutional amendment relating to
the free exercise of religion; provides that the
state, a county, municipality, political
subdivision or agency may not burden a person's
free exercise of religion unless necessary to
further a compelling governmental interest and is
the least restrictive means; provides that a
homeowners' association may not burden a person's
free exercise of religion unless necessary to
further a compelling quasi-governmental interest of
the homeowners' association.

Texas

HJR 125

Proposes a constitutional amendment relating to
a person's free exercise of religion.

Texas

SJR 10

Proposes a constitutional amendment relating to
a person's free exercise of religion.

Utah

HB 66; Failed

Relates to religious freedom; affirms a person's
religious freedom to act within the confines of the
person's religious beliefs.

Utah

HB 322; Failed

Adds religious liberty to the list of exceptions
in the Governmental Immunity Act; establishes the
Religious Liberty Act; declares the Act is in
furtherance of the rights and protections under the
United States and State constitutions; coordinates
the application of this bill to other statutory
provisions; permits a person or entity seeking
relief under the Act to obtain judicial relief,
attorney fees, and costs for violations of a
person's religious liberty.

Utah

HJR 5; Failed

Relates to the protection of religious rights;
proposes to amend the Utah Constitution to enact a
provision relating to religious rights.

ARKANSAS: In April, the House recalled from the
Governors desk a bill that would prohibit the
government from burdening a persons exercise of
religion, unless the state can demonstrate that the policy
is essential to a compelling governmental
interest and that it is designed to be the least
restrictive on the exercise of religion. The
legislature allowed the measure to die when they adjourned
their session.

GEORGIA: In March, the Senate approved a bill that would
prohibit the government from substantially
burdening a persons exercise of religion, unless
the state can demonstrate that the policy represents a
compelling governmental interest and that it is
designed to be the least restrictive on the
exercise of religion. The measure awaits action in the
House.

(ENACTED) INDIANA: In March, the House passed and Gov.
Mike Pence (R) approved a measure that would prohibit the
government from substantially burdening a
persons exercise of religion, unless the state can
demonstrate that the policy represents a compelling
governmental interest and that it is designed to be
the least restrictive on the exercise of
religion. Following controversy that the measure could be
used to discriminate, the Governor sent the bill back to the
legislature for clarification and amendment.

WYOMING: In February, the Senate approved a measure that
would prohibit the government from substantially
burdening a persons exercise of religion unless
the state can demonstrate that the policy represents a
compelling governmental interest and that it is
designed to be the "least restrictive" on the exercise of
religion. The measure awaits action by the Senate.

When religious liberty
demands cease to be legitimate

Amy ButlerI think most Americans, even non-religious
Americans, are on board with the idea of religious liberty
 in the abstract. But like so many of the things we
hold dear, what sounds great in theory becomes deeply
complicated when the rights we cling to
individually begin to conflict.

All of us have been watching news reports of contentious
legal claims unfolding almost every day across America. From
North Carolina to Mississippi and lots of other places in
between, the stories vary in theme from contraception
mandates to wedding cakes to who gets to use the bathroom
where.

So perhaps religious liberty was on my mind a few weeks
ago  in the abstract, of course  when I found
myself traveling from Germany to New York. I boarded a huge
airliner with hundreds of other people and settled in for an
eight-hour trans-Atlantic flight. Exhausted after a long
week, before I got on the plane I stood in line at the
customer service desk and purchased an upgrade to a special
seat in premium economy. It was more money than I wanted to
spend, but at least I had a little more room to stretch my
legs, and the seat was on the bulkhead!

As I found my seat I began to notice that almost all my
fellow passengers were men, all dressed alike, obviously
part of a very observant religious group. The man sitting
next to me, in fact, was a member of the group. I said hello
and began settling in for the flight. But just as Id
begun buckling my seat belt, my seat partner signaled for
the flight attendant and explained to him that I would need
to be moved to another seat; his religious freedom, he said,
was violated by my presence, as his religion does not allow
him to sit next to a woman who is not his wife.

I had so many thoughts in that moment.

Over the course of the flight several other issues came
up in the cabin, each resulting in loud disagreements about
religious freedom; they were issues related to other folks
and their seatmates, food that didnt meet religious
standards, and the need to deal with solely male flight
attendants. The end result was a noisy, contentious, and
anxiety-ridden eight hours. Definitely not worth the upgrade
fee, let me tell you.

It was such a strange turnabout, a moment when the
abstract suddenly became painfully personal. I could see the
leader of the religious group just a few seats over, and I
wanted to go talk to him and say something like,
Listen, I get it. Im a person of faith too, and
I understand that it can be really difficult to hold beliefs
that are counter to the culture around you. But trying to
force everybody around you to conform to your view of the
world is just as bad as the rest of the world trying to
force you to conform to it.

Religious freedom is just that: freedom. Note that we
dont call it religious comfort. In other
words, yes, government should protect my right to practice
my religion, but its not societys obligation to
make that practice easy or carefree. If your faith prevents
you from sitting on an airplane next to a woman who
isnt your wife, then move to another seat. If your
faith tells you you cant go to the same bathroom with
some people, then figure out how to order your life so that
you use the bathroom in a place that seems appropriate for
you. If your faith tells you you cant sell wedding
cakes to certain people, dont go into the business of
selling wedding cakes.

Im a Baptist; Im all for religious liberty.
Many of my religious forebears have died to defend it, in
fact. But the behavior I saw on the plane last week was not
a legitimate demand for religious liberty, and neither are
laws dictating where people can use the bathroom and whom I
can refuse to serve in my business. All of those claims, in
fact, make a mockery of the sacrifice of so many by twisting
the ideals of religious liberty and using them to
discriminate against others.

Faith requires sacrifice. And, frankly, if our faith
causes us to feel so much conviction about the issues
confronting us, then perhaps we should find a way to manage
the inconvenience of making that sacrifice instead of
trampling the rights of others.